FILED

United States Court of Appeals

Tenth Circuit

February 4, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 09-2201
(D. New Mexico)

WINGROVE EDWARD MICHAEL,

(D.C. No. 1:06-CR-01833-MCA-1)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.

I. Introduction
Wingrove Edward Michael appeals his conviction of possession with intent
to distribute more than 100 kilograms of marijuana and his resulting sentence. He
argues the district court erred in denying his motion to dismiss the charge on the
grounds that the government destroyed potentially exculpatory evidence in bad
faith. He further asserts the district court erred in refusing to grant a downward
adjustment to his sentence for his minor role and for enhancing his sentence based

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

on a finding of obstruction of justice. Exercising jurisdiction pursuant to 18

U.S.C. 3742(a) and 28 U.S.C. 1291, this court AFFIRMS.
II. Background
As found by the district court, Michael, driving a refrigerated tractor-trailer
truck, passed through a checkpoint in New Mexico where his truck was subjected
to a routine safety inspection. During the initial inspection, a New Mexico
Department of Public Safety officer noticed the truck did not display a current
Commercial Vehicle Safety Alliance inspection sticker and Michaels logbook
reported unusual travel activity. Based on these observations, the officer referred
Michael to a second-level safety inspection. During that inspection, Michael
identified himself as the owner of the truck, including the trailer. He also
produced a bill of lading that was unusual in several ways, including that it
identified three boxes of tools as the only cargo. This cargo would leave most of
the truck empty and would not require refrigerated transportation.
While conducting an examination of the truck itself, the officer observed
the trailer was empty except for three wooden crates toward the front. He also
observed several features that seemed to indicate a false wall at the front of the
trailer concealing a hidden compartment. Most notably, he observed a three-foot
difference in length between the interior and the exterior of the trailer
compartment. During the inspection, the initial investigating officer could not
detect an odor of marijuana, but acknowledged in his report that another officer
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stated he could smell marijuana. At the conclusion of the inspection, the officer
detained Michael, performing a pat-down search and conducting a canine
inspection of the exterior of the truck. The dog alerted at the front of the trailer.
Michael was arrested and a search warrant for the truck was obtained. The
officers then opened the three wooden crates. The crates measured approximately
four to five feet on each side and were fastened with wood screws, insulated on
the interior with Styrofoam, and sealed with silicone along the joints. Bundles
inside the crates, wrapped in contact paper, contained marijuana. The crates and
their contents were seized. Drug Enforcement Administration (DEA) agents
found no fingerprints on the seized evidence. The marijuana was photographed
and weighed, samples were taken for testing, and it was transferred to the DEA
drug evidence vault in Albuquerque.
Michael was charged with a single count of possession with intent to
distribute more than 100 kilograms of marijuana in violation of 21 U.S.C.
841(a)(1) and (b)(1)(B). After the charge was filed, the DEA sent a letter to the
United States Attorney informing him that the bulk marijuana, but not the
samples, would be destroyed after sixty days unless a written request for an
exception to the DEAs drug destruction policy was received before that period
expired. Extensive correspondence between two DEA agents, the Assistant
United States Attorney (AUSA), and Michaels attorney followed. The details
of the exchanges were part of the district courts findings and need not be
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repeated here. In essence, Michaels attorney repeatedly asserted a general

objection to the destruction of the marijuana, and the DEA agents and the AUSA
repeatedly directed Michaels attorney to seek a court order. Michaels attorney
informed both a DEA agent and the AUSA of his intention to file a motion.
After the sixty-day period had expired but before the marijuana was
actually destroyed, Michaels attorney filed a motion to preserve the evidence. In
the motion, he explained that he contemplated hiring experts to analyze the
evidence and conduct a scientific odor analysis. He nonetheless asserted the short
time frame prevented him from fully developing a theory about the usefulness of
the evidence. The district court directed the government to file an expedited
response to Michaels motion. The AUSA, however, testified he did not become
aware of the motion until more than a week after it was filed because of the
Thanksgiving holiday and other business. Upon learning of the motion, he sent
an email to the DEA agent. The agent stated he did not receive the email until yet
another day had gone by because of his absence from work. When he did receive
it, he informed the AUSA that the marijuana was at the burn site and destruction
would not be delayed. Thus, despite the pending motion to preserve evidence, the
marijuana was destroyed that same day. The government informed the district
court of the destruction when it filed its response.
After acknowledging the motion to preserve evidence was moot, Michael
moved to dismiss the charge and/or suppress the alleged marijuana evidence
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seized from the tractor/trailer, arguing the governments destruction of the

marijuana violated his due process rights. Michael subsequently submitted the
affidavit of a potential expert witness who opined how the marijuana might have
been tested to determine whether a human could have detected any odor. At a
hearing on Michaels motion, the expert admitted various flaws in his proposed
odor analysis that could affect the reliability of the results. Michaels attorney
indicated the expert was not retained to provide expert testimony that would be
admissible at trial, but rather only to explore potential usefulness of the evidence.
The district court acknowledged a dispute whether the odor was detectable
and credited some evidence the government acted in bad faith when it destroyed
the marijuana, thereby raising due process concerns. It concluded, however, that
the proper remedy was to suppress any evidence the officers or any other human
could smell the marijuana. At trial, Michael testified in his own defense, stating
he did not know the crates contained marijuana. He was convicted by the jury.
At sentencing, Michael requested a downward adjustment to his offense
level based on his minor role in the criminal activity, arguing he was nothing
more than a courier. See U.S. Sentencing Guidelines Manual 3B1.2. The
district court denied that adjustment. In addition, Michaels presentence report
(PSR) recommended a two-level upward adjustment for obstruction of justice
based on perjury pertaining to the conduct forming the basis of the offense,
notably, Michaels false testimony that he lacked knowledge of the contents of
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the crates. See id. 3C1.1. Michael objected to the enhancement, noting the
Guidelines require specific findings of the elements of perjury and that a 3C1.1
enhancement cannot be based solely on a defendants decision to testify. The
district court applied the obstruction of justice enhancement, calculating
Michaels advisory guidelines sentencing range at seventy-eight to ninety-seven
months. The court sentenced Michael to a seventy-eight month term of
imprisonment.
III. Discussion
A. Destruction of Evidence
Michael argues the district court erred in denying his motion to dismiss the
charge based on the governments destruction of potentially exculpatory evidence,
namely the bundles of bulk marijuana. He asserts the destroyed evidence could
have been used to show that a human could not have detected the smell of the
contents of the bundles. This fact purportedly would bear on Michaels
knowledge of the contents.
To demonstrate that destruction of evidence rises to the level of a due
process violation, a defendant must show the government destroyed potentially
useful evidence, there was no reasonable avenue for obtaining comparable
evidence, and the destruction was in bad faith. Arizona v. Youngblood, 488 U.S.

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51, 57-58 (1988); United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994). 1 A
district courts underlying factual determinations are reviewed for clear error.
Bohl, 25 F.3d at 909; see United States v. Gardner, 244 F.3d 784, 788 (10th Cir.
2001). This court reviews for abuse of discretion the district courts decision to
remedy the governments bad faith destruction of evidence by suppressing
secondary evidence rather than dismissing the charge. See United States v.
Barajas-Chavez, 358 F.3d 1263, 1267 (10th Cir. 2004); see also Bohl, 25 F.3d at
914 (explaining the weighing of factors to be considered in choosing an
appropriate remedy).
The question on appeal is whether suppression of all odor evidence was an
adequate remedy for the bad faith destruction of the marijuana. Michael advances
no argument as to why dismissal of the charge was required, but seems to
presume dismissal is always required once a constitutional violation of this nature
is established. This court, however, has clearly stated that once a due process
violation is established, the decision to either suppress the governments
secondary evidence describing the destroyed material or to dismiss the indictment
turns on the prejudice that resulted to the defendant at trial. Bohl, 25 F.3d at
914.
1

If evidence is not merely potentially useful, but rather has exculpatory

value that is apparent before its destruction, a defendant need not demonstrate bad
faith. See California v. Trombetta, 467 U.S. 479, 489 (1984). No argument has
been made here, however, that Michael can satisfy the more exacting Trombetta
standard, nor does the record support such a conclusion.
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There is no reason in this case to second guess the sound judgment of the
district court in fashioning an appropriate remedy. The district court correctly
considered the prejudice that might result from Michaels inability to access the
destroyed evidence. It appropriately noted the low probability of usefulness of
the destroyed evidence based on the experts admission that the proposed odor
analysis would not be able to take account of many relevant factors, such as any
change in odor over time, competing odors that might have been present in the
trailer, temperature, and wind speed.
Moreover, the court considered what role the odor evidence might play in
the governments case as to each element of the offense. It explained that the
destroyed evidence was not required for the government to demonstrate the nature
of the contents of the crates or the quantity of marijuana. It further noted the
government recovered no fingerprints or biometric information linking Michael to
the destroyed evidence, and Michael would be able to point to the absence of such
evidence at trial. Finally, the district court concluded the only way the
government might use the destroyed evidence to Michaels prejudice would be to
suggest Michael could have or would have known the contents of the crates by
their distinctive odor.
Accordingly, the district court cured any possible prejudice to Michael by
suppressing all evidence the government could otherwise introduce concerning

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human ability to detect the marijuanas odor. 2 Although the issue of Michaels
knowledge was central to the governments case, once the district court
suppressed the odor evidence, the issue of whether humans could detect the odor
played no part in the trial. The district court carefully crafted the remedy to
protect Michaels rights and did not abuse its discretion in choosing to suppress
secondary evidence rather than dismiss the charge.
B. Sentencing
1. Obstruction of Justice
Michael argues the district court improperly enhanced his sentence for
obstruction of justice based on Michaels testimony at trial. In the alternative,
Michael contends the district court failed to make the requisite factual findings to
support the enhancement and that this court should remand for clarification by the
district court.
An obstruction of justice enhancement is appropriate when a court finds the
defendant has committed perjury pertaining to conduct that is the basis of the
offense for which a defendant was convicted. U.S. Sentencing Guidelines Manual
3C1.1 cmt. n.4(B). In the context of 3C1.1, perjury is committed when a

Any affirmative use Michael might have made of the odor analysis in an
effort to demonstrate his lack of knowledge is purely speculative and, in any
event, this argument is not adequately developed on appeal. It would, moreover,
have been subject to competing evidence that at least one officer detected the
odor at the time of arrest. Accordingly, there is no error in the district courts
determination that any prejudice to Michael could be remedied by suppression.
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defendant makes a false statement under oath, the statement concerns a material
matter, and the defendant intends to testify falsely. United States v. Hawthorne,
316 F.3d 1140, 1145 (10th Cir. 2003). We review factual findings relating to an
obstruction of justice enhancement for clear error and legal interpretations of the
sentencing guidelines de novo. Id. Specific findings concerning each of the
elements of perjury is strongly preferred. United States v. Dunnigan, 507 U.S.
87, 95 (1993), abrogated on other grounds, United States v. Wells, 519 U.S. 482
(1997). In addition, this court requires the district court to identify, at least
generally, the statements found to be false. Hawthorne, 316 F.3d at 1146.
Here the district court merely recited: I am overruling that objection [to
the enhancement], and there will be the adjustment that stands for obstruction. I
think all the criteria have been met here. In isolation, this statement would be
insufficient. Although this court strongly urges district courts to make detailed
and explicit findings on each required element supporting an obstruction of
justice enhancement based on perjury, the context of the district courts
statements may be taken into account on appellate review. See id. at 1146.
The context of the district courts statements cure any deficiency here.
First, the PSR specifically recommended the obstruction of justice enhancement
based on Michaels trial testimony that he lacked knowledge the crates in the
trailer contained marijuana. The PSR quoted Michaels trial testimony where he
specifically answered no to the questions, Did you know what was in the
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crates? . . . Did you know that there was marijuana in there? . . . Did you ever
suspect any marijuana being in there? The PSR explained that the jurys guilty
verdict necessarily indicated the jury did not find Michaels testimony as to his
knowledge truthful, since knowledge is an element of the offense for which
Michael was convicted.
At the sentencing hearing, Michaels lawyer read the testimony quoted in
the PSR and focused his argument on that testimony. Michael also correctly set
out the elements of perjury the district court was required to find, and presented
argument as to how Michaels testimony did not meet the elements. The
government likewise focused on the quoted testimony and again laid out the
elements of perjury. Immediately prior to the district courts ruling, the
government stated:
[Michael] was asked about three or four different ways whether he
knew about the drugs in that trailer, and he denied it and he said
No.
So Your Honor, the point with this is, all three prongs of this
test are satisfied. He was under oath. It was material, and it was
material because everything that he was saying was directed at the
facts of the case, and for the jury to conclude that his story was true.
And the last prong itself, Your Honor, was that it was false testimony
and it was willful. Its not a mistake.
Immediately thereafter, the court found all the requirements for application of the
enhancement were met. While the far better practice is for the district court to
make specific findings, in the context of the dialogue at the sentencing hearing

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and the PSR, it is clear the district court found Michaels testimony met each of
the three requirements for perjury sufficient for this court to uphold the findings
as adequate.
Michaels argument that the jurys guilty verdict is not necessarily
inconsistent with his testimony that he lacked knowledge of the contents of the
crates also fails. He argues the jury could have found him guilty based on a
constructive possession rather than actual possession theory. Even if that were
true, however, constructive possession does not negate the knowledge element of
an offense. See United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th
Cir. 1998) (Generally, a person has constructive possession when he or she
knowingly holds ownership, dominion or control over the object and premises
where it is found. (emphasis added)). The district court here, in instructing the
jury that it could find Michael guilty based either on actual possession or
constructive possession, properly explained that [a] person who, although not in
actual possession, knowingly has the power at a given time to exercise dominion
or control over an object, either directly or through another person or persons, is
then in constructive possession of it. (emphasis added). That is, constructive
possession is an alternate avenue for proving possession, but does not supplant
the knowledge requirement. The jury necessarily had to find that Michael had
knowledge of the crates contents to find him guilty whether his possession was
actual or constructive.
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Accordingly, the district courts finding that Michael committed perjury

was not based solely on Michaels decision to testify in his own defense, but
rather that he willfully testified to a material fact the jury necessarily found was
false beyond a reasonable doubt. See U.S. Sentencing Guidelines Manual 3C1.1
cmt. n.2. The district court did not err in applying the two-level upward
adjustment for obstruction of justice.
2. Minor Role Adjustment
Michael argues he should have been granted a downward adjustment in his
offense level for his minor role in the criminal activity. A defendant may receive
a minor role adjustment if his part in the offense renders him significantly less
culpable than an average participant. Id. 3B1.2 cmt. n.3(A). We review the
district courts factual finding that Michael did not play a minor role for clear
error and the district courts application of the sentencing guidelines de novo.
United States v. Bowen, 437 F.3d 1009, 1018 (10th Cir. 2006). The defendant
bears the burden of proving entitlement to a minor role adjustment by a
preponderance of the evidence. See United States v. Mendoza, 468 F.3d 1256,
1264 (10th Cir. 2006).
In denying the minor role adjustment to Michael, the district court
explained that it had insufficient information to indicate one way or another what
Michaels role was, including whether he was directing or acting at the direction
of others. The sole evidence before the district court was Michaels own
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testimony that he was only a courier, which the district court can discredit. See
United States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004) (A
defendants own testimony that others were more heavily involved in a criminal
scheme may not suffice to prove his minor or minimal participation, even if
uncontradicted by other evidence.). Moreover, even if Michaels role was
limited to that of a courier, a courier role is not minor per se. See United States v.
Eckhart, 569 F.3d 1263, 1276 (10th Cir. 2009) (noting the importance of drug
couriers in the drug trade and that no per se rule concerning minor role
adjustments applies to couriers). [A] downward adjustment for a defendants
role in an offense turns on the defendants culpability relative to other
participants in the crime. Id. (quotation omitted). It is particularly appropriate
to deny a minor role in a case such as this one where no other participant in the
crime is known to which Michaels role can be compared. See U.S. Sentencing
Guidelines Manual 3B.1.2 cmt. n.2.
The district court had before it more than sufficient evidence to find that
Michaels role was not minor, including Michaels ownership of the tractor-trailer
and control over it, and the quantity of marijuana in the trailer. Accordingly, the
district court did not clearly err in finding Michael had not met his burden to
demonstrate his role was minor.

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IV. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

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